Board of Appeals v. Z & K Enterprises, Inc.

301 N.E.2d 578, 1 Mass. App. Ct. 845

• Court: Massachusetts Appeals Court
• Decided: September 25, 1973
• Status: Published

Opinion

The appeal to this court is from a final decree of the Superior Court which, in effect, sustained the decision of the board of appeals of the town of Webster (G. L. c. 40A, § 21, as amended through St. 1970, c. 80) denying an application to the board for a special permit (G. L. c. 40A, § 4, as most recently amended by St. 1966, c. 199) to use certain land in the “Agricultural-Single Family Residential” zoning district for a “mobile home park” (see Selectmen of Hatfield v. Garvey, 362 Mass. 821, 824-828 [1973], and cases cited; G. L. c. 140, §§ 32F and 32L, as most recently amended by St. 1964, c. 592, §§ 9 and 14, respectively). The provision of the zoning by-law relied on by the applicant authorizes the board, under stated conditions, to grant a special permit for the use of land in such a district for a “Hotel or Tourist Court” (§6, 2[e]). The proposed use disclosed by the evidence is not comprehended within either of the uses stated in the quoted portion of the by-law. It is not enough that a use for which a special permit is sought be “consistent” or “compatible” with a specific use for which the by-law states such a permit may be granted. General laws c. 40A, §4, requires such a use to be “of a character set forth in ... [the] by-law” (emphasis supplied). See Lawrence v. Board of Appeals of Lynn, 336 Mass. 87, 90 (1957); Gallagher v. Board of Appeals of Falmouth, 351 Mass. 410, 412-414,415-419 (1966); Gallagher v. Selectmen of Falmouth, 352 Mass. 307 (1967). See also Clark v. Board of Appeals of Newbury, 348 Mass. 407, 408-409 (1965).

Final decree of the Superior Court affirmed.